R v Jian HC Auckland CRI 2010-092-9117
[2010] NZHC 1655
•7 September 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-092-009117
CRI-2010-092-010777
THE QUEEN
v
CHE-YU JIAN MIN-KUAN HUANG
Hearing: 7 September 2010
Counsel: R Burns and B Smith for Crown
H Juran for prisoner Jian
D Wallwork for prisoner Huang
Judgment: 7 September 2010
Sentence imposed: Che-Yu Jian
Importing a Class A controlled drug (x 2)
10 years and seven months’ imprisonment (concurrent) Minimum term of imprisonment of five years.
Min-Kuan Huang
Importing a Class A controlled drug (x 2)
10 years and seven months’ imprisonment (concurrent) Minimum term of imprisonment of five years.
SENTENCING REMARKS OF ASHER J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
D Wallwork, PO Box 76 500, Manukau City 1702H Juran, PO Box 38030, Howick, Auckland 1706
R V CHE-YU JIAN AND ANOR HC AK CRI-2010-092-009117 7 September 2010
[1] Che-Yu Jian and Min-Kuan Huang, you appear for sentence today having each pleaded guilty to two charges of importing a Class A controlled drug methamphetamine. The maximum penalty for this offence is life imprisonment.
[2] On Sunday, 16 May 2010 you both came to New Zealand. Your home country is Taiwan. You were part of what appeared to be an organised tour group of seven persons. Six of the group were booked to stay at Sky City for two days and then to travel to Rotorua the following day and then back to Auckland to fly back home. On your arrival in New Zealand you Mr Huang were separated off from the others for a routine search and for questioning by Customs Officers. The other five persons in the group and the tour leader were allowed entry into New Zealand and they remained in the arrival hall of Auckland International Airport while you, Mr Huang, were spoken to and your luggage was searched.
[3] The search revealed a quantity of methamphetamine which was inside unopened and professionally sealed food containers that were in your luggage. As a result of what was found in your luggage, Mr Huang, the other members in the group were located still in the arrival hall and taken back to the Customs search area. The luggage of all the persons in the group was searched. In the end, from the group as a whole, 8.1064 kilograms of methamphetamine was found by Customs Officers. In your luggage Mr Huang there was a total of 2.6244 kilograms of methamphetamine, and in yours Mr Jian a total of 1.3945 kilograms of methamphetamine.
[4] When you were both spoken to you initially denied knowingly importing drugs, but soon during the course of discussions you admitted that you had been so involved to the Police. Mr Jian you said you were paid NWD$200,000, which is approximately NZ$8,900 for the May importation. Mr Huang you said that you were paid approximately NWD$170,000, which is approximately NZ$7,400.
[5] You both in the course of the discussion admitted being part of an earlier importation run in March. Your roles appear again there to have been that of couriers or mules. You told the Police, Mr Jian, that you were paid approximately
NWD$250,000 for that earlier importation, which is NZ$11,100. Mr Huang, you said you were paid NWD$150,000, being NZ$6,600 for that earlier importation.
Submissions
[6] In the course of the sentencing process I have had the benefit of pre-sentence reports and detailed and helpful submissions from all counsel involved.
[7] The Crown submits that the appropriate starting point for sentence for each of you is in the range of 17 to 20 years’ imprisonment, with a deduction of around one year for personal circumstances. The Crown accepts that there should be the appropriate deduction for early guilty pleas, and although the Crown initially suggested 30 percent it does not quibble with the defence submission that the full deduction of one-third for an early guilty plea should be allowed for both of you.
[8] The Crown in its written submissions, submits that the sentences in the end, after the deduction for the guilty pleas and the one year, should be in the range of 11 years and three months to 13 years and four months’ imprisonment. The Crown submits that a minimum non-parole period should be ordered of around 50 percent. The Crown does not seek to differentiate between the two of you.
[9] For you Mr Jian, your counsel submits that a starting point of 14 years’ imprisonment is appropriate with a discount for your guilty plea and an additional discount for personal circumstances, leaving a final sentence in the range of nine to
10 years’ imprisonment. It is submitted that a minimum period of imprisonment of no longer than half the actual sentence would be appropriate.
[10] For you Mr Huang, it is submitted that the appropriate starting point is 16 years’ imprisonment with an end sentence of 10 years and seven months’ imprisonment with a minimum period of imprisonment of 50 percent or less.
[11] The approach to sentencing is now well settled. I first reach a starting point by considering the aggravating and mitigating features of the offending itself. Then I consider the appropriate end sentence taking into account aggravating and mitigating features relating to you personally. Then when I have finally reached an end sentence point, I make whatever deduction is appropriate on account of your guilty pleas. I will then go on to consider minimum terms.
[12] In approaching your sentencing I must consider a number of factors. I have to impose the least restrictive outcome that is appropriate in the circumstances. Here, where there has been a commercial importation of drugs I must hold you accountable for the harm you have done to society in actually importing drugs. In particular, I must denounce such conduct and take into account the need to deter others. There is little need to protect the community from you, as you will be deported at the conclusion of your sentence.
[13] In considering how I should sentence you, I am guided by the Court of Appeal sentence tariff decision in R v Fatu.[1] That sets out four categories of offending for sentencing purposes in relation to importing. The most serious band is band 4, which relates to very large commercial quantities of drugs of 500 grams or more. Your sentencing falls into band 4. It is stated in Fatu that offending within that band will attract a sentence of 12 years to life imprisonment.
[1] R v Fatu [2006] 2 NZLR 72.
The offending
[14] So I now turn to consider the appropriate starting point. You sentencing can be looked at from two different perspectives. On the one hand I can look at your involvement in a group where there was approximately 8.1 kilograms of methamphetamine imported. You knew you were all involved in importing drugs. I accept you are unlikely to have know the exact amounts that you would have each had except that I have no doubt that you were aware that it was a very significant
commercial quantity. Otherwise it would not have been worth employing people such as yourselves on such an enterprise.
[15] If we take the number of people actively involved in the importation of somewhere around the six mark, although there is some doubt about that, it could be said that your individual responsibility for methamphetamine was around 1.3 to 1.5 kilograms. But that seems a rather artificial way of approaching it and it is better seen from the point of view that you were parties to an importation of around the 8.1 kilogram mark.
[16] The other way of looking at it is to consider the amounts you individually brought in – one of you 1.39 kilograms, and the other 2.62 kilograms. Neither of your counsel has suggested that any differentiation between you is appropriate and nor has the Crown. You did not know the exact amount each of you had. Mr Burns for the Crown has made a good point, which I accept, that in assessing culpability for the importation of significant quantities of methamphetamine there is not much to be gained by too precise a differentiation between amounts. This must be particularly so when offenders are acting as couriers only and do not know exactly how much they had.
[17] So for the purposes of sentencing I consider that you should be regarded as responsible for the importation of a considerable amount of methamphetamine, well over the minimum for band 4, but it must be recognised that your role was that of a courier. You did what you were told by organisers and you were paid an amount which, although considerable, was undoubtedly very modest in comparison to the vast profits that the actual organisers would have made.
[18] It is helpful to consider some other recent cases involving the importation of large quantities of methamphetamine. In R v Boyarski[2] the amount involved was
[2] R v Boyarski HC Auckland CRI-2006-092-12125, 29 May 2007.
4.734 kilograms. Mr Boyarski was a courier. The starting point was fixed at 14 to
16 years’ imprisonment. In R v Ang[3] there was four kilograms of methamphetamine imported from Hong Kong via Auckland Airport. Again the role of Mr Ang was that
of a courier. The starting point was fixed there at 16 years’ imprisonment, with a deduction of one year because of the role of Mr Ang as a courier. In the Court of Appeal decision of R v Chan[4] the amount of methamphetamine involved was 1.112 kilograms. Mr Chan appears to have had a more significant role than that of a courier only. A starting point of 12 years’ imprisonment was upheld by the Court of Appeal. I note that considerably higher starting points are applied when the offender has a role greater than that of a courier, I refer to the case of R v Chen-Wei & Zhong[5] where a sentence of 20 years for the importation of 4.3 kilograms was imposed and
17 years for just over two kilograms.
[3] R v Ang HC Auckland CRI-2008-004-12540, 18 November 2008.
[4] R v Chan [2009] NZCA 528.
[5] R v Chen-Wei & Zhong HC Auckland CRI-2006-019-8458, 8 May 2009.
[19] You are very clearly both in the position of couriers or parties. Taking into account your role, but also the very significant amounts involved, in relation to the May offending only I would have considered the appropriate starting point to be around 15 years’ imprisonment.
[20] However, there is more than that to be taken into account in assessing the starting point. You were involved in another significant importation in March. It is not possible to assess the exact amount imported but you were paid sums for that importation that had some similarity with the sums you were paid for the May importation. I am satisfied that I can properly infer that the March importation was a significant commercial importation. For that March importation alone you would have been sentenced to a very considerable term of imprisonment.
[21] However, it is necessary for me to take into account the totality principle. I note again your role as couriers and the fact that the Police information about that March importation is derived from your frank confessions to the Police. I also take into account the uncertainty as to how much was imported. In the end I have concluded that an uplift of two years is appropriate for that March importation, taking the starting point to 17 years’ imprisonment.
Personal circumstances
[22] You have no previous convictions in New Zealand, but that is hardly surprising given that you have not lived here at all. There is nothing to indicate that you have any previous record in Taiwan or elsewhere and I must proceed on the basis that you are first offenders.
[23] In terms of your background, there is nothing particularly significant disclosed in the pre-sentence reports. In the end I accept the submission effectively made by all counsel that a deduction of one year on account of good character is appropriate. This reduces the starting point to 16 years’ imprisonment. From that sentence you are entitled to a full one-third discount in accordance with the directive
set out in R v Hessell.[6] That leaves an end sentence for you both of 10 years and
seven months imprisonment.
[6] R v Hessell [2009] NZCA 450.
[24] In terms of Hessell, unless there are exceptional circumstances a sentencing Court should not allow a further discount on account of remorse. However, I do record in these sentencing notes that you Mr Jian certainly appear to have impressed the Probation Officer with your remorse and to have genuinely held feelings of regret for what you did. That is not to say that Mr Huang is not remorseful. I accept that there may have been communication difficulties between him and the Probation Officer because of his poor understanding of English.
Minimum term of imprisonment
[25] I now turn to the question of whether I should impose a minimum term of imprisonment. Again, for the purposes of this assessment, I consider your positions to be the same. Under s 86 of the Sentencing Act I should impose a minimum period that is longer than the usual, if I am satisfied that the usual period is insufficient. Sufficiency is measured against the factors set out in s 86(2). Those factors include holding you accountable for the harm done to the community, denouncing your conduct and deterring other offenders. Another factor referred to in s 86(2) is
protecting the community from you, but that does not apply as you will be deported when you have concluded your sentences.
[26] In this case you have actually imported methamphetamine into New Zealand which has been distributed – that is the March importation, so you have done real harm to our community by introducing significant quantities of this dangerous drug. You are accountable for that. It is necessary to denounce people who import large quantities of drugs into New Zealand and it is very important that others who might think of doing so are deterred from doing so.
[27] Given the very large quantities of methamphetamine involved here, it is necessary for me to impose a minimum term. In doing so, however, I do take into account the nature of your role as couriers, the fact that you will be serving your sentence of imprisonment in New Zealand far away from your homeland and that you will be immediately deported when your sentence is complete.
[28] A minimum term of a little less than 50 percent would be five years’
imprisonment. That is the minimum term I intend imposing on you. [29] Could you both please stand up.
[30] Mr Jian, you are sentenced on each count to a term of imprisonment of ten years and seven months. Of that you are to serve a minimum term of imprisonment of five years.
[31] Mr Huang, you are sentenced on both counts to a term of imprisonment of 10 years and seven months’ imprisonment. You are sentenced to a minimum term of imprisonment of five years.
[32] The terms of imprisonment are concurrent. [33] You may stand down.
……………………………..
Asher J
0